Many Eyewitnesses Prove Unreliable

November 09, 2010|BY DAVID R. CAMERON

The Connecticut Supreme Court recently had an opportunity to reduce the likelihood that an innocent person could be wrongfully convicted on the basis of a mistaken eyewitness identification — but it ducked the issue.

The opportunity arose in J'Veil Outing's appeal of his conviction for murdering another young man in New Haven in 2005. Outing was convicted on the basis of two eyewitnesses who identified him as the person who, after riding by them on a bicycle, got off and shot the victim. On appeal, he claimed the trial judge improperly excluded from a pretrial hearing a portion of the testimony of an expert in eyewitness identifications.

The judge allowed testimony about the risk of misidentification resulting from the way an identification procedure is conducted. But the expert was not allowed to testify that a misidentification can occur if the perpetrator was disguised or had a weapon. Nor was she allowed to testify that there is no correlation between the confidence with which an identification is made and its reliability, that stress associated with seeing a crime can affect the reliability of the identification and that collaboration between witnesses may lessen the reliability of the identification.

The judge ruled the testimony could be excluded because in 1986 the state Supreme Court ruled in State v. Kemp that "the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them."

While unanimously affirming Outing's conviction, the court divided 4-3 over whether to reconsider Kemp. The majority held that, because the issue arose in a pretrial hearing rather than in the trial and the defense didn't call the expert to testify in the trial, it was not an appropriate case for reconsidering Kemp.

Justice Richard N. Palmer, joined by two other justices, strongly disagreed. The only justice with substantial experience as a prosecutor — he previously served as U.S. attorney and chief state's attorney — Palmer said the argument in Kemp had been "thoroughly discredited" by empirical studies. Although eyewitness identification testimony is highly persuasive, it is "notoriously unreliable." The majority's refusal to address the issue was, he said, "indefensible."

The issue won't go away. Indeed, the court will soon hear the appeal of a New London man, Brady Guilbert, who was convicted of the execution-style murders of two men in a car in that city six years ago. He was convicted and sentenced to life in prison in part on the basis of eyewitnesses who heard gunshots and saw a man exit from the back of the car.

The defense sought to present expert testimony about the effects of stress and post-event information on the reliability of eyewitness identifications and the lack of a correlation between the confidence with which an identification is made and its reliability. The trial court, following Kemp, granted the state's motion to exclude the testimony.

On appeal, Guilbert claims the judge acted improperly in excluding the expert's testimony and, later, in instructing the jury about the reliability of eyewitness identifications.

Connecticut is not immune to wrongful convictions. Over the past four years, three men convicted years ago of crimes they didn't commit were exonerated by DNA. The first, James Tillman, was convicted on the basis of a mistaken identification. According to the Innocence Project, such misidentifications occurred in more than 75 percent of the 261 cases nationally in which convictions were overturned by DNA evidence.

A vast amount of evidence about wrongful convictions has accumulated since the court's ruling in Kemp. All of it demonstrates that, as Palmer said, Kemp is wrong. Reversing Kemp won't eliminate the risk of wrongful convictions based on mistaken eyewitness identifications. Much more is needed — either legislation mandating improvements in current eyewitness identification procedures or, failing that, administrative issuance of best practice guidelines. But reversing that thoroughly discredited precedent would be an important step in the right direction.

David R. Cameron is a professor of political science at Yale University.